November 3, 2010

Lyle Denniston reports on the oral argument today in Arizona Christian School Tuition Organization v. Winn. This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. Denniston begins his description with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state.

The lawyer defending the Arizona program said it was like tax deductions. People take tax deductions for their contributions to religious organizations all the time. What's different about tax credits? The lawyer arguing against the program "said that the money that is involved in the Arizona program is money raised by a tax; without a tax, there would be no tax credit."

If we view the tax credit as coming from the state's money, amassed by taxing, then the taxpayers who brought the suit probably have standing. But does that also answer the Establishment Clause question? Private citizens decide whether to contribute to a fund and pick from the qualified funds, not all of which exclusively fund religious schools, and the children getting the grants are choosing which school they want to go to. So there are 2 levels of private choice. And the definition of the funds is neutral and not religion-based.

--said that the money that is involved in the Arizona program is money raised by a tax; without a tax, there would be no tax credit."

Am I the only person who can't make sense of this? What in the world does it claim???

How is it that the money I earn and give to a private organization is "raised by a tax" ?

What in the world is the point of the sentence "without a tax there would be no tax credit" ? If I give money to my church, I get a tax deduction; without a tax, there would be no tax deduction. That doesn't mean the money I earned was involved with the tax. Keeping more of my own money doesn't mean the tax created the money.

is the point that sometimes tax credits in AZ are given even when no tax is paid--that is, you're given a subsidy?

Nonsense. In socialistic Canada and Europe they regularly allow vouchers to go to parochial schools and society has not fallen apart. They should do the same here. Competition is exactly what we need to make schools better. Public schools are inefficent and suck because they have no real competition.

What we have here is a failure to read the 1ST Amendment causing another argument based on the 50 year ago SCOTUS erection of a wall between religious activities and any connection to a government facility or a government favored activity...such as Colleges and Charities which have always been creations of organized religions. A simple prohibition on a State Church has been twisted into a new declaration that men cannot have a religion that acts in any area in which the State also acts. Talk about Puritans today and you are talking about the anti-Christian demands that public life be purified from our cultural heritage. That at least needs a Constitutional Amendment of its own, since it is just not anywhere in the 1789 version.

The Catch-22 of the whole church/state argument is that past a certain point it becomes circular.

Consider this scenario; I’m a government employee and give money to my church from my paycheck, does that constitute government support for a particular religion?"

When the state becomes the sole source of revenue for a substantial portion of the population, you could hypothetically limit the recipients’ ability to give to organizations of their choice, because anything they give money to is, in fact, receiving government money.

Well, the answer here is that Establishment Clause jurisprudence went way off the track a long time ago, and veered into a ravine killing everyone on board in the 1950s, 60s, and 70s.

The Establishment Clause prohibits the federal government from establishing a religion. That's it. That's all. If the federal government treats all religions (and that's organizations that legitimately rise to the level of religion, not Bong Cults), there is no problem here and no problem with much else.

But the Supremes have spent so long debating how many walls between Church and State can dance on the head of a pin that this simple solution will elude them.

Well, the Court has already held that the state can actually cut checks from taxpayer funds to, for example, St. Michael the Archangel school, so long as it does so through a voucher program in which the benefit is actually to the parents of the child, and the parents merely direct that the benefit (the voucher) be paid directly to the school chosen by the parent.

So I don't see how the result here should be any different than the result in the Cleveland case, even if one accepts the premise that tax credits = government spending.

Seven Machos said: "If the federal government treats all religions (and that's organizations that legitimately rise to the level of religion, not Bong Cults), there is no problem here and no problem with much else."

Why should the federal government (or the federal courts) decide what qualifies as a "real" religion and what does not? And if they should, what would that analysis look like, and who would it favor/disfavor?

Tax credits are not monies collected by government and returned...the monies are never collected. So, the only difference between a deduction and a credit is, at what point is the liability reduced? If reportable income is reduced it's a deduction. If tax liability is reduced, it's a credit. Either way, the amount by which payment is reduced is never sent to the government.

Regarding the Establishment Clause, how can a tax credit for people to pay for education, in ANY accredited religious or non-religious school, be seen as ESTABLISHING a religion? It boggles the imagination to see the Constitution manipulated thus.

So I read most of the report. What it sounds like to me is that they're trying to figure out if money not taken in by the government due to a tax credit is government money or not.

If it is determined to be government money, then yes, based on current interpretations, there may be Establishment problems.

But, if money not taken in by the government due to a tax credit is considered government money, then are taxpayers that take advantage of tax credits considered to be debtors to the government for that money retained? What of the recent home buyer credit extended without obligation to pay back? Is the government considered to have a stake in those homes, if that is considered government money?

Also, if a tax credit is state money, then why is a deduction (or, the deduction times the tax rate) not?

No, it is not state money. That is why we do not give it to the state. It is only state money if you are getting a refund back beyond the withholding you put in.

Anthony -- The issue here is which entities the federal government is giving money to (in way or another). As such, it is without question the prerogative of the federal government to determine which entities are eligible for that money.

There's a Charles Manson-loving group in the United States called ATWA. Small group. Should it receive government money for schooling because some Jesuit school does so long as it styles itself as a religion?

I can't imagine how the Establishment Clause got twisted around to mean freedom from religion instead of freedom of religion. The framers were only interested in preventing the establishment of a state religion whose membership would be a requirement of the law, as it was in England. As for charitable donations, a lot of organizations I find objectionable qualify as tax deductible donation recipients, including many religious organizations. Freedom of religion subsists to a great extent in being free from the burdens a government might choose to place upon those religions it doesn't like, viz. taxes.

In socialistic Canada and Europe they regularly allow vouchers to go to parochial schools and society has not fallen apart.

Definitely we could scale back the separation of church and state.

Tax credits should pay only for secular subjects, however, for K-12 schools. I don't want to pay more tax because you want religious indoctrination for your child. The difference is subtle, but tax deductions reduce your income, while tax credits rebate part of the tax you would normally pay.

I don't want to pay more tax because you want religious indoctrination for your child.

And I don't want to pay more tax because you insist that children be indoctrinated to celebrate the religious cult of environmentalism or to worship at the altar of the federal government. How many tax dollars were spent to teach those kids to sing the cultish Obama worship songs in 2008?

Where do I go to get my refund? Will you be signing the check personally?

"our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools,... and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals[.]"

Or take a line from Witters

"a State may issue a paycheck to one of its employees, 487*487 who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary."

So the point is even if you see it as "the state's money" and i think that is the case when the tax credit exceeds the amount of taxes you pay in, its still pretty well covered by precedent as far as i can see. what am i missing?

As an Arizonan parent, I hope they continue the tax credits for school choice. Even in parochial schools they must teach the three R's. Public schools barely do that much yet I'm taxed to pay for them. These tax credits give lower income families a chance to send their kids to better schools period. Personally I chose homeschooling, but that's a different kettle of fish!

Common sense and the law often conflict. There are many govt. dollars that go to religious schools..VA tuition, Pell Grants, etc. This is certainly more questionable than the aforementioned. Why don't we just ask Ann Laurie Gaylor, she'll give us a balanced critique!

"First of all, membership in the church of England was not 'required by law'. It was Puritans who tried that nonsense."

No, you are mistaken. Google "recusancy" before going any further. Establishment of religion meant a very particular thing to the founders.

During at least part of the colonial period, attendance at CoE worship was compulsory in England, while both the Catholicism of the Marylanders and the Puritanism of the Massachusetts-ers (sic?) were forbidden by law. During pretty much all of the colonial period, participation in Catholic Mass was deemed treason punishable by hanging, drawing, and quartering! (Google "Edmund Campion" and "Margaret Clitherow" for more history on this.)

That's the kind of establishment of religion the founders sought to prevent. They did not intend to mandate official secularism, or laicite, a concept that originated in the French Revolution, not the American.

If they forbid money being used for students going to a religious school, Christian or otherwise, they are making a law "respecting an establishment of religion, or prohibiting the free exercise thereof" and that's unconstitutional.

You get too deep into this arguments and money going to all sorts of religious oriented schools, universities, hospitals, etc will be threatened which is what Winn probably wants. But secularism and atheism are religious positions too and shouldn't trump other religious positions.

What would happen if churches renounced their 510(c)3 status? What if they said, "We will render unto Caesar what is Caesar's but nothing more. We will pay our taxes but we will not feel constrained to speak out on the issues of the day, we will advise our flock how to vote." I should think the secularists would find this more terrifying than the present situation.

will people be banned from using the GI Bill or federally guaranteed student loans to go to Notre Dame, Loyola, or SMU?

The issue is using tax money to pay for the religious indoctrination of youth. College students are not youth, but adults, and can decide for themselves what religion to follow, if any.

There's a practical difference between tax deductions and tax credits. Itemizing deductions is pointless unless you can take more than the standard deduction. And if you can take much more than the standard deduction, you often earn enough where your itemized deductions are limited. But a tax credit can (as I understand) be taken in full by anyone.

The issue is using tax money to pay for the religious indoctrination of youth.

Love your liberal interpretation fo the word "indoctrination."

Your argument still doesn't address the free exercise of religion. And, are you implying that the federal government should delve even deeper into telling us how to raise our kids because they're not adults and don't have free will or something like that? Or, are you arguing that kids should only be indoctrinated by the state approved, hopefully left wing biased, curriculum?

Unless you're arguing that you can't worship without an infusion of taxpayer money.

I'm saying the money should freely be able to be used for a religious based school or a non-religious school. Otherwise, the government is not freely allowing the exercie of religion which goes way beyond just attending worship services.

DADvocate says that constitutional liberties must be funded by tax money. Thus he must support federal funding of abortion, because the right to abortion has been established as a constitutional liberty.

It sure does. How about cutting taxes so the money doesn't have to flow through the government. But, this wouldn't fall in line with the left wing goal of redistribution of wealth. Which highlights the problem with government involvement in almost anything, loss of freedom. The government takes you money and when they give it back, they want to tell you how to act, what you can do and what you're supposed to think.

Freeman, non-religious schools are not just another type of religious schools. Similarly, vegetarians are not just another kind of carnivore, illiterates are not just another kind of literates, virgins are not just another kind of sexually active people, and so on.

If the government gives tax credits for donations that may go to religion, is that essentially the same as government spending on religion?

No, because the money doesn't belong to the government in the first place. Allowing people to donate to churches (or other charities) tax free is not the same thing as the government paying for that activity.

The underlying thought seems to be that the government owns everything and if the government doesn't tax anything that's the same as the government paying for it. If you believe the government owns all property by default then sure, you may consider this government subsidizing religion.

But even if you believe this is the government giving money to religious institutions it seems like this sort of subsidy is about as benign as it could get. Our parish has a school, 1st through 8th grade. The parents pay a tiny tuition on a sliding scale by income, IIRC full tuition is a bit less than $3k per year. We also give poor kids full scholarships (parishioners donate their supplies and uniforms). And it's a good school, we had some kids win a national scholarship award of some sort last year, I can't remember exactly what the name of it was.

We also feed hundreds of families per month. I volunteer 2 days a week to haul bread for that operation, we spend thousands of dollars monthly in parish funds on that. Qualifying for food stamps takes weeks, and the food bank also takes weeks to qualify. They actually send people to us if they need food now, today, because their kids are hungry.

What's the point of going after that sort of charitable giving? You have to really hate poor folks to try discourage this sort of activity.

No, because the money doesn't belong to the government in the first place. Allowing people to donate to churches (or other charities) tax free is not the same thing as the government paying for that activity.

The tax bill is a bill as real as any other. For example, if I don't pay my property tax, the county can sell my house on the courthouse steps. I can't argue that it's my house, leave me alone.

Similarly, the feds know how much I owe for income tax, based on my AGI. That is my tax liability. The feds count on receiving that amount -- they consider that amount is part of their revenues. This is consistent, I believe, with the accrual method of accounting.

But then they allow me to take some of their tax revenues and divert it to a third party, crediting me for the amount as if I had paid it directly to them. So, tax money flows to a religious organization.

If you're handing out tax credits to pay for school, you shouldn't get to say that it only goes to the school with the religion of your choice (secularism in this case).

"Religious secularism" is an oxymoron. The word "secular" means "not pertaining to or connected with religion". You can't be religious and secular. It is impossible.

Furthermore, "secular institution" is not the same thing as "institution founded on, inspired by, or engaged in the promotion of secularism". The Post Office is a secular institution, but only a complete idiot would say it promotes religion. There are thousands of secular educational institutions in America, virtually none of which exist to promote "secularism".

No, because the money doesn't belong to the government in the first place.

Scenario 1: The government imposes a $1000 tax on everybody. It then hands me and a few of my politically-connected friends $500 in cash.

Scenario 2: The government imposes a $1000 tax on everybody except for me and my politically-connected friends; we only have to pay $500.

It seems to me that the difference between these two scenarios amounts to nothing more than semantics. Either way, me and my politically-connected friends are $500 richer than we would be if the government wasn't giving us special favors other people don't get.

"The recusancy laws mandating attendance in the CoE went away before the Founders were even born."

Doesn't matter; they established the context under which the First Amendment was written, just as the 17th-century Star Chamber (also gone by that time) established the context for the Fifth Amendment.

"There are thousands of secular educational institutions in America, virtually none of which exist to promote 'secularism'."

Spoken like someone with no children to raise.

The point of education is to pass on the ideas and habits of civilization; the time devoted to each of those ideas and habits teaches their relative importance. When a secular institution forbids the official mention even in passing of Christian ideas and habits ("Winter Holiday", anyone?), and replaces them with secular substitutes (because public order and social cohesion depends upon some set of ideas and habits being taught to the young-'uns), then it's fair for parents to see those as a substitute religion. It doesn't help that modern PC liberalism comes complete with its own doctrines and sacraments.

Doesn't matter; they established the context under which the First Amendment was written

I was replying to this statement:

The framers were only interested in preventing the establishment of a state religion whose membership would be a requirement of the law, as it was in England.

I read that last bit as "as it was in England at the time", not "as it had been in England a century before the Bill of Rights was written". That is what I was disagreeing with. At the time the Bill of Rights was being written the main forces agitating for mandatory church attendance were puritanical Protestant groups.

Spoken like someone with no children to raise.

And you're speaking like someone who couldn't name any actual examples, and thus resorted to an argument from authority fallacy.

FLS the resident CPA says charitable contributions come out before you get to AGI, after you get AGI everything is a tax credit. Doesn't really matter to this conversation though.

You know we've always used the tax code to incentivise certain behaviors, marriage, child bearing, home ownership and a lot of other things. I've always thought it was a good approach, that encouraging good behavior is better than trying to penalize undesirable behavior. I don't think that idea is very controversial, although which behaviors we want to encourage is certainly open to debate.

To me, charitable giving is obviously something we'd want to encourage. And churches are at the forefront of that and very efficient at it. So it would seem to me that people should be able to put aside their own beliefs and accept that the organizations involved with this are doing a good thing that should be encouraged.

But for a lot of people apparently their hate for Christians overpowers their empathy for needy people.

An argument could be made that the whole tax code should be thrown out and that a new tax system should be set up that doesn't have deductions and I'm pretty sympathetic to that idea. But we have the system we have right now, and of all the things our system encourages, private non-profit schools and charities that feed the poor seem like strange incentives to get upset about.